농지처분의무통지취소
The judgment below is reversed, and the case is remanded to Busan High Court.
The grounds of appeal are examined.
1. As to the ground of appeal No. 2, whether certain land is “farmland” under the former part of Article 2 subparag. 1(a) of the Farmland Act shall be determined according to the actual phenomenon of the land regardless of the land category on the public register. However, even if the land which was “farmland” is actually used for another purpose under the Farmland Act is actually used for another purpose, if the land should be restored to the original state as farmland because it was unlawfully diverted without obtaining permission for diversion of farmland, such change is merely temporary and still constitutes “farmland”
(See Supreme Court Decision 2018Du43095 Decided October 25, 2018 (see, e.g., Supreme Court Decision 2018Du43095). The lower court determined that the instant farmland still constitutes “farmland” stipulated in the Farmland Act on the grounds that the instant farmland was unlawfully diverted without due process and ought to be restored in the future.
Such determination by the lower court is based on the legal doctrine as seen earlier, and it did not err by misapprehending the legal doctrine on farmland under the Farmland Act, contrary to what is alleged in the grounds of
2. Regarding ground of appeal No. 1
A. Article 6(1) of the Farmland Act provides that “The farmland shall not be owned by any person other than the person who uses or uses it for his/her own agricultural management.” However, Article 6(2) provides that “in any of the following cases, the farmland may, notwithstanding paragraph (1), be owned by any person other than the person who uses or uses it for his/her own agricultural management,” and subparagraph 4 of the same Article provides that “in cases falling under any of the following subparagraphs, the farmland may not be used for his/her own agricultural management.”
In addition, Article 7 (1) of the Farmland Act, which prescribes the maximum limit of farmland ownership, stipulates that a person who acquires farmland by inheritance but does not engage in agricultural management can own a total of up to 10,000 square meters of the inherited farmland.